# Sanju Thakur Revisionist v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2019) 2 ILRA 542
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-13
- **Case number:** Criminal Revision No. 3848 of 2015
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanju-thakur-revisionist-v-state-of-u-p-anr-opp-parties-44818
- **Pages:** 6

## Headnote

A. Cr.P.C., 1973 - Section 319 - Application
filed by revisionist rejected - Contradictory
and vague statements - Not sufficient to
bring the person in the category of
offender-Interpretation
of
Statute-"any
relative of her husband" in Section 304-B
IPC- Evidence required to summon a
person under Section 319 Cr.P.C. - Should
be much better in comparison to what is
required at the time of framing of the
charge and the evidence should be such
that the court should be of the view that it
will certainly lead to the conviction of such
person who is being sought to be
summoned under section 319 Cr.P.C. ( Para
12,13,14,15 & 16)

From the statement of all the witnesses and
the First Information Report it is clear that the
role of Ram Prakash was of only mediator in
settling the marriage of the deceased. No
allegation in First Information Report that Ram
Prakash is a relative of the accused persons,
but in the application under section 319, he
has been stated to be a relative of accused
person.

A penal statute should be strictly construed.
The expression "any relative of her husband"
occurring in Section 304-B IPC should be
limited to persons related by blood, marriage
or adoption.

PW-1 who is informant has said that Ram
Prakash is relative of the accused persons and
he said that if they give rupees five lakh, the
matter may come to an end and his daughter
may live comfortably. Similar statements have
been given by PW-2 and 3 also. Only on the
basis of this statement, the application under
section 319 Cr.P.C. has been given which is not
sufficient to involve Ramprakash in the crime
and cannot bring him in the category of
2 All. Sanju Thakur Vs State of U.P. & Anr.
543
associate offender nor can make out a case
against him.

It is essentially required that there should be
evidence against such person which should be
much better in comparison to what is required
at the time of framing of the charges and the
evidence should be such that the court should
be of the view that it will certainly lead to the
conviction of such person who is being sought
to be summoned under section 319 Cr.P.C.

Criminal Revision dismissed (E-3)

Case law relied upon/discussed: -

## Text

542 INDIAN LAW REPORTS ALLAHABAD SERIES
well as, as has been stated by her in
F.I.R., is a subject matter of evidence
because no opinion can be given on these
aspects till both the parties have adduced
evidence before trial court. A perusal of
the charge- sheet would reveal that there
are as many as 8 witnesses whose
statements have been recorded by the
investigating officer in this case, out of
whom the attention is drawn by the
learned counsel for the revisionist to the
statement of the victim only under Section
164 Cr. P.C. as well as FIR which have
been cited above and not to any other
witness which include three witnesses of
fact and one Doctor apart from the formal
witnesses. The copies of the statements of
these witnesses have not been annexed
with the present revision, therefore this
court does not have opportunity to go
through those statements and form an
opinion as to whether there was no
evidence on record against the accused
revisionists
constituting
offence
as
mentioned above or not.

14. Accordingly I do not find any
force in the present revision which needs
to be dismissed and is accordingly
dismissed.
----------

(2019)10ILR A 542

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2019

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Revision No. 3848 of 2015

Sanju Thakur ... Revisionist
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Revisionist:
Sri Manoj Kumar Mishra, Sri Raj Kumar
Dhama

Counsel for the Opposite Parties:
A.G.A., Sri Paritosh Shukla

A. Cr.P.C., 1973 - Section 319 - Application
filed by revisionist rejected - Contradictory
and vague statements - Not sufficient to
bring the person in the category of
offender-Interpretation
of
Statute-"any
relative of her husband" in Section 304-B
IPC- Evidence required to summon a
person under Section 319 Cr.P.C. - Should
be much better in comparison to what is
required at the time of framing of the
charge and the evidence should be such
that the court should be of the view that it
will certainly lead to the conviction of such
person who is being sought to be
summoned under section 319 Cr.P.C. ( Para
12,13,14,15 & 16)

From the statement of all the witnesses and
the First Information Report it is clear that the
role of Ram Prakash was of only mediator in
settling the marriage of the deceased. No
allegation in First Information Report that Ram
Prakash is a relative of the accused persons,
but in the application under section 319, he
has been stated to be a relative of accused
person.

A penal statute should be strictly construed.
The expression "any relative of her husband"
occurring in Section 304-B IPC should be
limited to persons related by blood, marriage
or adoption.

PW-1 who is informant has said that Ram
Prakash is relative of the accused persons and
he said that if they give rupees five lakh, the
matter may come to an end and his daughter
may live comfortably. Similar statements have
been given by PW-2 and 3 also. Only on the
basis of this statement, the application under
section 319 Cr.P.C. has been given which is not
sufficient to involve Ramprakash in the crime
and cannot bring him in the category of
2 All. Sanju Thakur Vs State of U.P. & Anr.
543
associate offender nor can make out a case
against him.

It is essentially required that there should be
evidence against such person which should be
much better in comparison to what is required
at the time of framing of the charges and the
evidence should be such that the court should
be of the view that it will certainly lead to the
conviction of such person who is being sought
to be summoned under section 319 Cr.P.C.

Criminal Revision dismissed (E-3)

Case law relied upon/discussed: -

1. Hardeep Singh Vs St. of Punj. AIR 2014 SC
1400
2. Babubhai Bhimabhai Bokhiria Vs St. of Guj.
2014 (5) SCC 568
3. Brijendra Singh Vs St. of Raj. AIR 2017 SC 2839
4. Labhuji Amaratji Thakor Vs St. of Guj. AIR
2019 SC 734
5. Rakesh Vs St. of Har. AIR 2019 SC 2168
6. St. of Punj. Vs Gurmit Singh (2014) 9 SCC 632
(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Shri Raj Kumar Rawat,
learned counsel for the applicants, Shri
Paritosh Shukla, learned counsel for the
opposite party no.2, learned A.G.A. and
perused the record.

2. This revision has been filed
against the order dated 17.8.2015 passed
by
learned
Additional
Sessions
Judge/F.T.C., Aligarh, in S.T.No.927 of
2012 (State vs. Raju Singh and others),
under sections 498A, 304B I.P.C. and 3/4
D.P. Act,
PS.
Gandhipark,
District
Aligarh by which the learned trial court
has rejected the application of the
applicant-revisionist under section 319
Cr.P.C. for summoning the accused Ram
Prakash for trial in the aforesaid case.

3.

Learned
counsel
for
the
revisionist submitted that an application
39 Kha under section 319 Cr.P.C. was
given by the complainant stating that the
name of Ram Prakash was mentioned in
the First Information Report and PW-1,
PW-2 and PW-3 in their statements have
stated that the said Ram Prakash was also
involved
in
commission
of
crime.
According to the complainant this fact
was brought in the knowledge of said
Ram Prakash that the accused persons are
demanding rupees five lakh in dowry and
requested that he should try to convince
them but Sri Ram Prakash said that if they
give rupees five lakh, the matter will be
over. On the basis of the statements of
witnesses, the complainant has requested
to summon said Ramprakash as an
accused in the said trial under section 319
of the Criminal Procedure Code.

4. After hearing both the sides, the
learned trial court applying the law laid
down in Hardeep Singh vs State of
Punjab, AIR 2014 SC 1400, rejected the
said application by the impugned order.

5. Aggrieved by the order, this
revision has been filed and the impugned
order has been challenged on the ground
that the order is illegal and is not based on
evidence on record. The learned court has
committed
error
and
has
wrongly
appreciated the evidence without applying
judicial mind.

6. Section 319 Cr.P.C. reads as under :-

"319. Power to proceed against
other persons appearing to be guilty of
offence.-
544 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) Where, in the course of any
inquiry into, or trial of, an offence, it
appears from the evidence that any
person not being the accused has
committed any offence for which such
person could be tried together with the
accused, the Court may proceed against
such person for the offence which he
appears to have committed.

(2) Where such person is not attending
the Court, he may be arrested or summoned,
as the circumstances of the case may require,
for the purpose aforesaid.

(3) Any person attending the Court
although not under arrest or upon a
summons, may be detained by such Court
for the purpose of the inquiry into, or trial
of, the offence which he appears to have
committed.

(4) Where the Court proceeds
against any person under sub - section
(1), then-

(a) the proceedings in respect of such
person shall be commenced a fresh, and
the witnesses re- heard;

(b) subject to the provisions of clause
(a), the case may proceed as if such
person had been an accused person when
the Court took cognizance of the offence
upon which the inquiry or trial was
commenced."

7. In Hardeep Singh (supra), the
Constitution Bench has settled the law in
respect
of
Section
319,
Criminal
Procedure Code. that the standard of
proof employed for summoning a person
as an accused under Section 319 is higher
than the standard of proof employed for
framing a charge against an accused. The
Supreme Court observed for the purpose
of Section 319 as under:

"........what is, therefore, necessary
for the Court is to arrive at a satisfaction
that the evidence adduced on behalf of the
prosecution, if unrebutted, may lead to the
conviction of a person sought to be added
as the accused in the case."

Regarding the degree of satisfaction
necessary for framing a charge, the Court
observed:

"However, there is a series of cases
wherein this court while dealing with the
provisions of Sections 227, 228, 239, 240,
241, 242 and 245 of the Cr.P.C., has
consistently held that the court at the
stage of framing of the charge has to
apply its mind to the question whether or
not there is any ground for presuming the
commission of an offence by the accused.

The court has to see as to whether
the
material
brought
on
record
reasonably connect the accused with the
offence. Nothing more is required to be
enquired into. While dealing with the
aforesaid provisions, the test of prima
facie case is to be applied. The court has
to find out whether the materials offered
by the prosecution to be adduced as
evidence are sufficient for the court to
proceed against the accused further".

The Court concluded as below:

"106. Thus, we hold that though only
a prima facie case is to be established
from the evidence led before the court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied
is one which is more than prima facie
case as exercised at the time of framing of
charge, but short of satisfaction to an
extent
that
the
evidence,
if
goes
unrebutted, would lead to conviction......"

8.

In
Babubhai
Bhimabhai
Bokhiria vs. State of Gujarat, 2014 (5)
SCC 568, the aforesaid view of Hardeep
Singh (supra) has been further quoted
2 All. Sanju Thakur Vs State of U.P. & Anr.
545
with approval and the Supreme Court has
held as under :-

"Section 319 of the Code confers
power on the trial court to find out
whether a person who ought to have been
added as an accused has erroneously
been omitted or has deliberately been
excluded by the investigating agency and
that satisfaction has to be arrived at on
the basis of the evidence so led during the
trial. On the degree of satisfaction for
invoking power under Section 319 of the
Code, this Court observed that though the
test of prima facie case being made out is
same as that when the cognizance of the
offence is taken and process issued, the
degree of satisfaction under Section 319
of the Code is much higher."

9. In Brijendra Singh vs State of
Rajasthan, AIR 2017 SC 2839, the
supreme court discussed the meaning of
'evidence'
in
section
319,
Criminal
Procedure Code and expressed the view
that
the
examination-in-chief
of
prosecution witnesses is to be considered
and there is no need to wait for crossexamination. The prima facie opinion and
satisfaction with regards to complicity of
the person in commission of the offence is
not mere probability of involvement. It
requires stronger and cogent evidence. In
this case, the IO investigated the offence
and did not submit charge-sheet for the
reason that at the time of incident the
appellant was at a distance of 175 km
from the place of occurrence. The
supreme court set aside the summoning
order and observed that no doubt, the trial
court can summon the person on the basis
of the statement of witnesses given during
trial.
However,
where
plethora
of
evidence was collected by the IO
including
documentary
evidence
indicating his plea of alibi to be correct,
the trial court is duty bound to consider
the evidence so collected by IO while
forming
opinion
and
recording
satisfaction regarding prima facie case for
the purpose of section 319 of the Criminal
Procedure Code.

10. The view expressed in Hardeep
Singh (supra) has been further reiterated
in Labhuji Amaratji Thakor vs State of
Gujarat, AIR 2019 SC 734 and has laid
down that the test that has to be applied is
one which is more than prima facie case
as exercised at the time of framing of
charge, but short of satisfaction to an
extent
that
the
evidence,
if
goes
unrebutted, would lead to conviction. The
Supreme Court set aside the order of the
High Court and up held the order of Court
below rejecting the application under
section 319.

11. In Rakesh vs State of Haryana,
AIR 2019 SC 2168, It appears that the
facts of the case was quite similar in the
case before the Supreme Court as in that
case also the name of the persons was not
mentioned in the FIR and when the
statement under section 161 Cr.P.C. was
recorded by the Investigating Officer, the
name of these persons did not find
mention.
The
supreme
court
again
considered the ambit of section 319 and
laid down as follows:

"Thus, we hold that though only a
prima facie case is to be established from
the evidence led before the court, not
necessarily tested on the anvil of crossexamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied
is one which is more than prima facie
case as exercised at the time of framing
546 INDIAN LAW REPORTS ALLAHABAD SERIES
charge, but short of satisfaction to an
extent
that
the
evidence,
if
goes
unrebutted, would lead to conviction."

12. In this instant case, from the
perusal of the First Information Report, it
appears that the complainant side asked
Ram Prakash to advise the accused
persons not to harass the deceased and
went to in-laws side but they did not
follow the advice so given by Ram
Prakash. Thus from the statement of all
the witnesses and the First Information
Report it is clear that the role of Ram
Prakash was of only mediator in settling
the marriage of the deceased. Therefore
on the request of the complainant side he
further got himself involved to make the
accused person in the incident that they
should not demand the additional dowry
nor harass the deceased. It is no where
alleged in the application on the basis of
which the First Information Report was
lodged that Ram Prakash is a relative of
the
accused
persons.
But
in
the
application under section 319, he has been
stated to be a relative of accused person.
What is the relation and whether he
comes in the category of the 'husband or
the relative of the husband' as occurred in
498-A of the IPC is not clear.

13. In State of Punjab Vs. Gurmit
Singh, (2014) 9 SCC 632, it has been held
that meaning of the words "any relative of
her husband" occurring in Section 304-B
IPC & meaning of the words "relative of
the husband" occurring in Section 498-A
IPC are identical and mean such person
related by blood, marriage or adoption. A
penal statute should be strictly construed.
The expression "any relative of her
husband" occurring in Section 304-B IPC
should be limited to persons related by
blood, marriage or adoption. Nowhere it
has been stated that Ramprakash is related
with accused by blood, marriage or
adoption nor there is any evidence that he
resides with the accused persons.

14. Learned trial court has found
that in the First Information Report itself
it has been mentioned that the role of Ram
Prakash was of only mediator in the
marriage and he was asked to settle the
dispute between in-laws and parents of
the deceased so that the accused could not
harass her for demand of additional
dowry. It has further been mentioned in
the First Information Report that Ram
Prakash tried to convince the in-laws of
the deceased but he did not succeed and
the
accused
continued
demanding
additional dowry. PW-1 who is informant
was examined in the case and in his
statement he has said that Ram Prakash is
relative of the accused persons and on his
saying, he tried to convince the accused
persons. He also said that if they give
rupees five lakh, the matter may come to
an end and his daughter may live
comfortably. Similar statements have
been given by PW-2 and 3 also. Only on
the basis of this statement, the application
under section 319 Cr.P.C. has been given
which is not sufficient to involve
Ramprakash in the crime.

15. Moreover, merely saying that Ram
Prakash asked to give rupees five lakh to the
accused to end the trouble of the deceased,
cannot bring him in the category of associate
offender nor can make out a case against him.
The trial court has taken reference of the
judgement of Hon'ble Supreme Court in the
case of Hardeep Singh (supra) and has
concluded that for summoning a person under
section 319 Cr.P.C. It is essentially required
that there should be evidence against such
person which should be much better in
2 All. Rahul Verma Vs State
547
comparison to what is required at the time of
framing of the charges and the evidence
should be such that the court should be of the
view that it will certainly lead to the
conviction of such person who is being sought
to be summoned under section 319 Cr.P.C.

16. In view of the above discussions,
I find that there is no material illegality
and infirmity in the impugned order nor
there is any jurisdictional error.

17. This revision has got no force
and it is accordingly dismissed.

18. The stay order, if any, shall
stand vacated.

19. The court below shall take all
endeavors in concluding the trial.
----------

(2019)10ILR A 547

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.09.2019

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Criminal Revision No. 1269 of 2019

Rahul Verma ...Revisionist
Versus
State ...Opp. Party

Counsel for the Revisionist:
Pranjal Krishna

Counsel for the Opposite Party:
A.S.G.

A.
Cr.P.C.,
1973-Section
319
-
Revisionists though nominated in the
F.I.R exonerated in the Police Report on
basis of alibi -" Evidence" - is limited to
the evidence recorded by the trial court -
Statement recorded under Section 161
of the Cr.Pc - Has only the limited
purpose of contradicting the maker
thereof- the other evidence which has
come on record between the stage of
taking cognizance by the Court till the
commencement of the trial can merely
be used for corroborative purposes - Plea
of Alibi- Section 103 of the Evidence Act
- Burden of Proof for establishing the
plea of alibi - Could be done by leading
evidence in trial court and not by relying
on
the
material
collected
during
investigation n- The Court in exercise of
its inherent powers under Section 482
Cr.P.C. cannot consider the plea of alibi
of an accused- Precedent-a decision is
precedent on its own facts- the only
thing binding a party is the ratio
decidendi which is generally secundum
subjectam materiam-Application under
Section 319 Cr.P.C.- is maintainable only
when implicative evidence of probative
value more than strong suspicion comes
on record in shape of documentary or
oral evidence in trial - Power under
Section 319 of the Code - is conferred on
the court to ensure that justice is done
to the society by bringing to book all
those guilty of an offence and to render
justice to the victim.

Scope, ambit and sweep of expression
"evidence" contained under Section 319 Cr.P.C.
and explained in the para 85 in the
Constitution Bench judgement of Hardeep
Singh was not considered in the subsequent
cases in Brijendra Singh's and Shiv Prakash
Mishra's cases to the extent that any evidence
collected during investigation either in favour
of the prosecution or the accused cannot be
taken into account while exercising the power
under
Section
319
Cr.P.C.
In
view
of
unambiguous interpretation to the
word
'evidence'; it is limited to the evidence
recorded by the trial court".

A decision is precedent on its own facts- The
only thing in Judge's decision binding a party
is the principle upon which the case is decided
and for this reason it is important to analyze a
decision and isolate from it the ratio decidendi.